The Value of Knowing Nothing

My purpose here is not to write about Scott—whose encyclopedic knowledge has made Scott on Trusts an authoritative treatise for generations—but to describe Surbeck. For many years a mentor and senior colleague, he demonstrated that knowing nothing can be an enormous asset to a litigator.

Surbeck himself was such an extraordinary character that the temptation to linger on the biographical cannot be entirely resisted. The son of a poor preacher who died young, Surbeck graduated from the South Dakota School of Mines. With his widowed mother in tow, he went on to Yale Law School on a scholarship, finishing first in his class. Following a Supreme Court clerkship with Chief Justice William Howard Taft, Surbeck practiced for his whole career as a litigator at Hughes Hubbard & Reed and its predecessors without once standing up in court—yet, he was paid at the highest level at the firm. Why was the ignorance identified by Professor Reese so valuable to the firm?

Surbeck understood that by the time a big problem was presented to a major outside law firm, a conventional analytical approach was not going to produce a good answer. What Surbeck recognized was that finding a good answer in those circumstances required approaching the problem with no preconceptions, assuming nothing as given and questioning everything. Rather than approaching the problem with the perspective of an experienced and sophisticated litigator with a vast store of knowledge, he approached it as a naïf. It was not as though he thought outside the box; for Surbeck, there was no box in the first place. He would come up with 100 ideas or approaches. Ninety-eight would turn out to be completely worthless, but one or two would show genius equal to the problem at hand. Surbeck’s approach involved both aptitude and attitude—an agile and creative mind combined with the confidence that if one cast one’s thinking broadly enough, there was a winning argument out there somewhere. This approach succeeded again and again.

I do not claim to have had as many Surbeckian moments as Surbeck himself. But from time to time, Surbeck’s approach has proved to be just what I needed in a tight spot.

One of our firm’s clients was Wells Rich Greene, the dynamic advertising agency whose iconic Alka Seltzer commercials a generation ago still resonate today—“I can’t believe I ate that whole thing.” Wells Rich was founded by the glamorous Mary Wells, later Mary Wells Lawrence, who became the first woman head of a company listed on the New York Stock Exchange when Wells Rich went public in 1968. Several years later, when the cachet of public company status had worn off and the stock price had slumped, Wells Rich went private. Going private then became a matter of controversy, as public shareholders received less for their investments than they had paid in the original public offerings. The Securities and Exchange Commission (SEC) announced plans to hold public hearings. Shortly thereafter, Wells Rich received from the SEC staff a questionnaire several pages long.

It did not require genius to realize that the SEC intended to put on a three-ring circus with our client in the center ring. The questionnaire was not returned. When no response was received, the SEC staff served a subpoena on Wells Rich seeking essentially the same information. As a young partner, my instructions from my senior were clear: Get that subpoena quashed.

At the time, that was like being told to square the circle. It was impossible to quash an SEC subpoena. While the SEC has been cuffed around by the courts in recent years, it was riding high at that time, and SEC subpoenas were routinely and almost universally enforced no matter what the objections. The experts agreed that resisting an SEC subpoena in court was futile. Conventional thinking was going to get me nowhere.

As I sat in the firm’s library on a Saturday morning staring at the questionnaire, a typewritten document that did not appear to be specific to Wells Rich Greene, I tried to put myself in a Surbeckian mind-set. It occurred to me that other government documents I had seen had little combinations of letters and numbers at the bottom of the page, but the questionnaire did not. I did some research and learned about something called the Federal Reports Act. It requires that agencies wishing to send a form to more than 10 members of the public seeking to gather information must first submit the form for comments to the Office of Management and Budget (OMB) or, in the case of independent agencies like the SEC, to the General Accounting Office (GAO), an arm of Congress. These little letters and numbers on the forms reflected OMB or GAO involvement. Agencies were free to ignore any comments received from the OMB or GAO and could in any event proceed if the agency had heard nothing back within 60 days. But agencies were required to go through the process, designed to limit burdens on the public.

We had our theory. We sued the SEC to quash the subpoena on the ground that it was intended to force compliance with a questionnaire issued in violation of the Federal Reports Act. It worked beautifully. It turned out that the questionnaire had been sent to 14 firms, so we were over the statutory threshold, if barely. The SEC Enforcement Division leadership at the time was noticeably aggressive, and as I correctly predicted, the SEC fought the suit rather than simply complying with the act and waiting 60 days. Two years later, the suit fizzled to an end as the issue had become moot—regulators’ interest in going-private issues had waned.

Right around that time, Surbeck at age 73 got married for the first time, to a lovely and gracious IBM widow with two Rolls Royces. Having retired from law practice without ever speaking in court, Surbeck spent his time at Rev. Norman Vincent Peale’s school for young ministers giving lectures on the subject of how to preach. Along the way, the wealth that the legal marketplace had let Surbeck’s ignorance command had enabled him to provide college scholarships to close to a thousand students.

So the next time you are given a really hard problem, forget everything you ever thought you knew. And once you know nothing, you will be ready to start fresh.